Citation Nr: 9807921
Decision Date: 03/17/98 Archive Date: 04/02/98
DOCKET NO. 94-08 978 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to service connection for a pulmonary disability,
to include residuals of pneumonia and pulmonary tuberculosis.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Milo H. Hawley, Counsel
INTRODUCTION
The veteran had active service from August 1946 to April
1949.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1993 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, Philippines.
Service connection for pulmonary tuberculosis and pneumonia
was denied by a rating decision in January 1958. The veteran
was notified of that action by official letter in January
1958, and his appellate rights, but he did not initiate an
appeal and it became final. By rating decision in February
1989, service connection for pneumonia was denied. The
veteran was notified of that decision and his appellate
rights, but he did not initiate an appeal and it became
final.
By decision in January 1996 the Board found that new and
material evidence had been received to reopen a claim of
entitlement to service connection for a pulmonary disability,
to include residuals of pneumonia and pulmonary tuberculosis.
That decision also remanded the appeal for additional
development. By decision in August 1996 the Board again
remanded the appeal for further development.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended, in substance, that the veteran had pulmonary
tuberculosis during his active service and that he currently
has residuals thereof.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a preponderance of the
evidence is against the claim for service connection for
pulmonary disability, to include residuals of pneumonia and
pulmonary tuberculosis.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. The veteran did not have a chronic pulmonary disability
during his active service.
3. The veteran does not have a currently manifested
pulmonary disability, to include residuals of pneumonia and
pulmonary tuberculosis, that is related to his active
service.
CONCLUSION OF LAW
A pulmonary disability, to include residuals of pneumonia and
pulmonary tuberculosis, was not incurred in or aggravated
during active service and the inservice incurrence of
pulmonary tuberculosis may not be presumed.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107
(West 1991 & Supp. 1997); 38 C.F.R. §§ 3.303, 3.307, 3.309
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The record reflects that all available relevant medical
evidence has been obtained, noting that the veteran reported
during his personal hearing that reports of X-rays, he had
indicated were accomplished from 1950 to 1970, were
destroyed. The veteran has been afforded a VA examination
and service medical records have been obtained. The veteran
has also submitted private treatment records as well as a
letter from a former Philippine Army physician. The Board is
satisfied that all available relevant evidence has been
obtained and the duty to assist has been met.
38 U.S.C.A. § 5107.
Service medical records reflect that the veteran was received
at the Fourth General Hospital on November 4, 1946, on
transfer from the 2007th Station Hospital. The admission
diagnosis was observation for tuberculosis. A November 5,
1946, report of sputum test reflects that the test was
negative for tubercle bacilli. The report of a November 6,
1946, chest X-ray reflects that there was irregular
infiltration of both upper (sic) lobes with the findings
suggesting primary atypical pneumonia and the possibility of
lower lobe acid fast involvement receiving clinical
consideration. The report of a November 13, 1946, sputum
test reflects that there were no acid fast tubercle bacilli
found. The report of a November 15, 1946, chest X-ray
reflects that the original report should have read lower
lobes and indicates that the chest X-ray revealed a partial
portion of the previously reported pneumonic process in both
lower lobes. The report of a November 26, 1946, chest X-ray
reflects that it was within normal limits. The veteran was
discharged on November 29, 1946, with the final diagnosis
being pneumonia, both lower lobes, bacterial type, organism
undetermined.
A January 1949 service treatment record reflects that the
veteran was seen with the complaint of chest pain. An X-ray
was negative. The report of the veteran's April 1949 service
separation examination reflects that he had been observed for
pulmonary tuberculosis in 1946 at the 10th General Hospital.
There had been no complication or sequelae. The separation
examination report reflects that chest X-ray revealed no
significant abnormality. On examination his lungs
demonstrated no significant abnormalities and the report
reflects that he had no physical defect.
The report of a May 1950 Philippine Army chest X-ray reflects
that the purpose of the X-ray was for enlistment and
indicates that the veteran had a fluoroscopically healthy
chest.
A March 1988 report of private X-ray of the veteran's chest
reflects that there were streaky densities in both lower
lungs. The impression was pneumonitis, bilateral.
A February 1989 letter from Edilberto T. Simon, M.D., a
private physician, reflects that the veteran had been under
his medical care in March 1988 and January 1989. On both
occasions he was treated for pneumonitis.
A March 1993 affidavit from an individual who identified
himself as a medical doctor and former member of the Medical
Corps of the Armed Forces of the Philippines, having retired
in December 1971 after 30 years of service, indicates that he
was an officer of the Third Station Hospital at a Philippine
air base from 1947 to 1951. It reflects that during this
time period the veteran, a "private," had and was treated for
the finding of pulmonary tuberculosis. It reflects that the
veteran was discharged from the hospital and eventually
served until November 1966. It does not indicate that there
was any further treatment received by the veteran between
1951 and 1966.
During a RO hearing in August 1993, the veteran was asked if
he was treated for pneumonia in 1946. He responded in the
affirmative. It was noted that service medical records did
not indicate any further problems with his lungs until he was
discharged from service in 1949. He was asked when he began
to have problems with his lungs and the veteran responded
that probably after discharge from service. He indicated
that he began to have problems three days after his discharge
from service. Inquiry was made of the veteran as to what
medical treatment he received right after his discharge from
service. He responded that he took care of himself with
previous medicine given to him and that he did not seek any
independent medical practitioner to look after his lung
problem after his discharge. From 1949 until 1953 he
continued to take medication on his own because he knew what
kind of antibiotic to take. He reported that he had had
X-ray examinations for pneumonia and pulmonary tuberculosis
of the right lung in 1950, 1953, 1957, 1965, and 1970, but
these were destroyed by his boarder. Insofar as the veteran
is qualified as a lay person the Board finds his testimony to
be credible, but he is not qualified to offer a medical
diagnosis or medical opinion.
The report of a January 1997 VA examination reflects that the
veteran reported that he was diagnosed with pulmonary
tuberculosis in 1946. He indicated that he did not currently
take any antituberculosis medication. The examiner opined
that present pulmonary disability cannot be dissociated from,
and in fact is most probably associated with, “claimed”
disability of pulmonary tuberculosis diagnosed during
service. The exact date of onset of lung disability however
remains to be established. The examiner additionally noted
there were no actual residuals of pulmonary tuberculosis
currently seen and actual documentation of previous pulmonary
tuberculosis, preferably with actual chest X-ray might be
necessary. The examiner summarized that, in other words,
even if the veteran had no residuals of pulmonary
tuberculosis currently, he may still have had the pulmonary
tuberculosis before. The report of a January 1997 VA X-ray
reflects that the lung fields were clear and, except for
atheromatous aorta, the chest X-ray was negative.
In a March 1997 report, the chairman of the VA tuberculosis
board states that the veteran was diagnosed with having
pulmonary tuberculosis in 1946. Physical examination of the
chest and lungs was reported as currently unremarkable and
sputum smears and cultures were negative. After review of
the clinical history, physical examination, sputum studies
and chest radiograph, the tuberculosis board concluded that
the veteran had a history of pulmonary tuberculosis,
presently resolved with no residuals, stage 4. The
impression was history of pulmonary tuberculosis, presently
resolved with no residuals, stage 4.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The
law also provides that service connection may be granted for
any disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d). When
a veteran served continuously for ninety (90) days or more
during a period of war or during peacetime service after
December 31, 1946, and pulmonary tuberculosis becomes
manifest to a degree of 10 percent within three years from
date of termination of such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309.
The veteran has submitted evidence in support of his
assertion that he currently has pulmonary disability that is
either residual to pneumonia or pulmonary tuberculosis which
he asserts was initially manifested during his active
service. Initially, the Board will undertake an analysis
with respect to whether or not the veteran had pneumonia
during his active service and whether or not he has
disability that is residual to any pneumonia that he had
during active service.
There must be evidence both of a current disability and of an
etiological relationship between that disability and service
in order for the veteran to ever establish service
connection. Caluza v. Brown, 7 Vet. App. 498, 506 (1995);
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
A review of the above evidence reflects that the veteran had
pneumonia during active service, but that it was never found
to be chronic. The evidence reflects that his pneumonia had
cleared by late November 1946 and was not again manifested
during his active service. Further, the pneumonitis for
which he was treated in March 1988 and January 1989 has not
been, by competent medical evidence, related to any incident
of his active service. Also, there is no competent medical
evidence that the veteran currently has residuals to the
pneumonia he experienced during his active service. While
the veteran has offered statements and testimony concerning
pulmonary complaints, he is not qualified, as a layperson, to
offer medical diagnoses or medical opinions as to etiology.
Espiritu v. Derwinski, 2 Vet. App. 492. 494-95 (1992).
On the basis of the above analysis there is no competent
medical evidence that the veteran had pneumonia of a chronic
nature during his active service or that he currently has any
pulmonary disability that is residual to the pneumonia that
he experienced during his active service. Rather, the
competent medical evidence reflects that the pneumonia he
experienced during active service was cured in November 1946
and did not thereafter again manifest itself. In light of
the above, a preponderance of the evidence supports a finding
that the veteran does not currently have residuals of the
pneumonia he experienced during active service and,
therefore, a preponderance of the evidence is against service
connection for residuals of pneumonia.
With respect to the assertion that the veteran had pulmonary
tuberculosis during active service, contemporaneous service
medical records reflect that when the veteran was initially
admitted to the hospital in November 1946 the diagnosis was
observation for tuberculosis. However, during that
hospitalization all laboratory reports and chest X-rays did
not indicate that he had pulmonary tuberculosis, but rather
that he had pneumonia as above discussed. Sputum tests were
negative for tuberculosis.
Service treatment records include records relating to the
veteran's dental care in September 1947 as well as dental
care from May through July 1948. They also reflect reports
of medical care from July through November 1948 and in
January 1949, indicating negative chest X-rays in January
1949. The report of his service separation examination,
conducted in April 1949, notes the observation for pulmonary
tuberculosis in 1946 and indicates that there was no
complication or sequelae. The report of that examination, as
previously noted, also reflects that there was no significant
abnormality of the lungs or chest or chest X-ray. The
veteran's service medical records, from 1946 on, reflect that
he was a private first class. The report of his separation
at service reflects that his rank was that of private first
class. The report of the May 1950 service chest X-ray
reflects that the veteran had a healthy chest. The reports
of VA examination and VA tuberculosis board, dated in January
and March 1997, reflect that the veteran has no current
residuals of pulmonary tuberculosis. The March 1993
affidavit by the former Philippine Army Medical doctor refers
to the years from 1947 to 1951 and indicates that the veteran
was a "private" and that the veteran had and was treated for
the finding of pulmonary tuberculosis. During the veteran's
personal hearing he testified that after he was treated for
pneumonia in 1946 he received no further treatment during
service for his lungs. He became ill with a lung problem
three days after his discharge from active service but did
not seek independent medical care until 1953, choosing to
treat himself because he knew what kind of antibiotic
medication to take.
The above review reflects that the veteran's contemporaneous
medical record provide no finding that concludes that he had
pulmonary tuberculosis during his active service, but rather
the findings were that he did not have pulmonary
tuberculosis, with chest X-ray in 1949 being normal. Chest
X-ray in 1950 continued to be normal. The veteran testified,
under oath, that he did not have any problem with his lungs
following the 1946 episode until three days after his
discharge in 1949. He testified that he did not seek
independent medical care until 1953, but self-treated
himself. The Philippine Army doctor refers to the timeframe
during which the veteran had and was treated for a finding
of pulmonary tuberculosis as being from 1947 to 1951. He
also refers to the veteran as having been a private. The
Board notes that from 1946 until April 1949 the veteran's
service medical records reflect that he was a private first
class and his separation document also reflects that he was a
private first class. While the Board observes that a private
first class could be referred to as a private, it also notes
that the former Philippine Army doctor was a colonel in the
Armed Forces of the Philippines Medical Corps for 30 years
and that in his affidavit he referred to the veteran as a
second lieutenant, an apparent reference to the veteran's
status at the time he finally separated from Philippine
service in November 1966. The Board notes that he did not
refer to the veteran as a lieutenant, but specifically
identified him as a second lieutenant.
In light of the service medical records, that identified the
veteran as a private first class rather than a private, as
well as that indicate the veteran did not have pulmonary
tuberculosis, considered together with the May 1950 X-ray
which does indicate that the veteran's chest was healthy, and
the veteran's testimony that he had no lung problems
following the 1946 hospitalization until three days after his
discharge in 1949 and then sought no independent medical care
until 1953, the Board concludes that the former Philippine
Army doctor's recollection that the veteran had and was
treated for pulmonary tuberculosis between 1947 and 1951 is
not credible, and is rebutted by other evidence of record.
As such, it is accorded no probative value because it is
inaccurate. The Board concludes, based upon the above
analysis, that the former Philippine Army doctor has
misidentified the veteran as a person who had pulmonary
tuberculosis between 1947 and 1951. Rather, the Board finds
the service medical records and the report of the May 1950
chest X-ray to be credible and to demonstrate that the
veteran did not have pulmonary tuberculosis during his active
service.
At the time of the January 1997 VA examination the veteran
reported a history of having been diagnosed with pulmonary
tuberculosis in 1946. As noted previously, the veteran is
not qualified to offer a medical opinion, and based upon the
above analysis, his report with respect to having been
diagnosed with pulmonary tuberculosis in 1946, is not
factually correct. Therefore, the diagnosis offered in the
report of the January 1997 examination as well as the
findings and diagnoses offered by the VA tuberculosis board
with respect to the veteran's having a history of pulmonary
tuberculosis are based on an inaccurate factual foundation
and are of no probative value. Elkins v. Brown, 5 Vet.
App. 474, 478 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-
61 (1993).
On the basis of the above analysis the only probative medical
evidence of record shows that the veteran did not have
pulmonary tuberculosis during his active service, or within
three years of discharge from active service, and there is no
competent medical evidence of record which reflects that he
has any current residuals of pulmonary tuberculosis.
Therefore, a preponderance of the evidence is against a
finding that the veteran had pulmonary tuberculosis during
service, within three years of discharge from active service,
or that he currently has any residuals of pulmonary
tuberculosis. On the basis of the above analysis, a
preponderance of the evidence is against service connection
for a pulmonary disability, to include residuals of pneumonia
and pulmonary tuberculosis.
ORDER
Service connection for a pulmonary disability, to include
residuals of pneumonia and pulmonary tuberculosis, is denied.
U. R. POWELL
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -